The power given by S. 115 of the Code of civil procedure is clearly limited to the keeping of the Subordinate Courts within the bounds of their jurisdiction.

SUPREME COURT OF INDIA in Major S. S. Khanna Versus Brig. F. J. Dillon[AIR 1964 SC 497 : (1964) 4 SCR 409] held

28. Section 115 of the Code of Civil Procedure reads as follows:

“The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit.”

29. The power which this section confers is clearly of the nature of a proceeding on a writ of Certiorari. But it differs from that power in many ways. Certiorari has many different forms which may be classified as follows:

(1) Certiorari to remove for trial;

(2) Certiorari for Judgment or indictment;

(3) Certiorari to quash;

(4) Certiorari for purposes of execution or coercive process:

(5) Certiorari to remove orders etc., on case stated;

(6) Certiorari to remove Depositions for Bail, and

(7) Certiorari to remove Record for use as evidence.

30. In English Common Law Certiorari to quash issues in a completed case and the Common Law is now crystallised by order 58 of the rules of Supreme Court. In America Certiorari has been differently understood and is a means of review. That arises from the Special Appellate Jurisdiction of the United States Supreme Court created by Statute (See U. S. C. A. Tit 28, para 1254) and from the fact that the Supreme Court must of necessity exercise this power as a part of its appellate jurisdiction.

31. This supervisory power of the High Court under the English Law is not to be confused with visitorial power of the High Court exercisable by the writ of Mandamus. Mandamus issues to Courts only when justice is delayed and is a command to them to hear and dispose of the case. There is also the writ of Prohibition which issues to a Court to stop it from taking upon itself to examine a cause and to decide it without legal authority. The writ of Mandamus was evolved much later than the writ of Certiorari and by Mandamus the Courts were not directed to give any particular Judgment but merely to give Judgment. An erroneous Judgment could be set aside on appeal or quashed by Certiorari. Prohibition lay to prevent assumption of jurisdiction but only before an order was passed. Certiorari to quash lay in a completed case on a question of jurisdiction and an error of law apparent from the face of the record. As Lord Summer observed in Rex. v. Nat Bell Liquors Ltd., 1922-2 AC 128 at page No. 156:

“Its jurisdiction is to see that the inferior Court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in so doing it would itself, in turn, transgress the limits which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points:one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise.” 32. From the above discussion it is apparent that interference with a case before an inferior Court by Prerogative writs could take place under the English Law:

(a) by stopping proceedings before the case was decided by a writ of Prohibition;

(b) ordering the trial of a case and the delivery of Judgment by Mandamus.

(c) quashing an order in a completed case for want of jurisdiction or for an error of law apparent on the face of the record.

33. The power given by S. 115 of the Code is clearly limited to the keeping of the Subordinate Courts within the bounds of their jurisdiction. It does not comprehend the power exercisable under the writ of Prohibition or Mandamus. It is also not a full power of Certiorari inasmuch as it arises only in a case of jurisdiction and not in a case of error. It has been ruled by the Judicial Committee and also by this Court that the section is concerned with jurisdiction and jurisdiction alone involving a refusal to exercise jurisdiction where one exists or an assumption of jurisdiction where none exists and lastly acting with illegality or material irregularity. Where there is no question of jurisdiction in this manner the decision cannot be corrected for it has also bee ruled that a Court has jurisdiction to decide wrongly as well as rightly. But once a flaw of jurisdiction is found the High Court need not quash and remit as is the practice in English Law under the writ of Certiorari but pass such order as it thinks fit.

34. Judged from this angle, the decision of the trial judge being erroneous for the reasons pointed out by my learned brother Shah, J., the trial judge was clearly denying a jurisdiction by holding that the suits were not maintainable. The only question is whether these can be said to be “cases” “decided” by the Subordinate Judge and whether the suits answer the description “in which no appeal lies”. It may be noticed that the last phrase does not speak of an appeal ‘under the Code’. The description therefore is a general one and applies to every decision of a court subordinate to the High Court in which no appeal lies, whether under the Code or otherwise. A decision of the Subordinate Court is therefore amenable to the revisional jurisdiction of the High Court unless that jurisdiction is clearly barred by a special law or an appeal lies therefrom.



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